Thursday, April 12, 2012

New States, Different Responses?

A key tenet of public international law is that states, regardless of their size or wealth, are equal as a matter of law within the international community. This makes the difficulties that claiming entities experience in achieving statehood understandable, since the benefits of being recognized as a state are of such gravity.
The Montevideo factors – the most universally accepted set of standards for determining statehood claims and status – establish four factors that must be met in order to achieve statehood in the eyes of the international community. These factors are: 1) a determined area, 2) a settled population, 3) an effective government, and 4) the capacity to enter into international relationships. On their face, these requirements seem quite simple, however in application they are anything but. Ultimately, it can be argued that the most dominant factor is international capacity since it is only through the collective will and recognition of the international community that a claiming entity will be recognized and legitimated as a state.
In this environment, it is easy to assume that, once the coveted status of statehood is granted, essential protections such as respect for state boundaries and the non-intervention in the affairs of a state would be accorded to the new state. However, based on the events of recent weeks and months in South Sudan, this assumption appears to be painfully wrong.
South Sudan is the world’s newest state, with an official date of independence from Sudan on July 9, 2011. Achievement of independence from Sudan came at the cost of millions of lives during a series of civil wars and after the people of South Sudan voted for independence in 2011 by a nearly unanimous margin. Several days after this declaration of independence, the world community recognized the statehood of South Sudan by granting it admission to the United Nations on July 14, 2011.
Since that time, South Sudan (Prior IntLawGrrls posts on this issue here) and Sudan have continued to skirmish across their respective borders, with Sudan being reluctant to lose the oil-rich territory within South Sudan and South Sudan asserting its power by pursuing the interests of the Sudanese government along the border. Indeed, over the past few days it appears that this fighting has worsened. In the process, civilians have lost their lives and livelihoods and the stability of both regimes has been tested.

And yet, for the majority of these hostilities the world community has said very little. In recent days there have been statements of condemnation from key states, including the United States, and condemnation by the United Nations and the African Union. However little else has been done to assist a state that is recognized as a legitimate actor in the international system or, more importantly, to assist those living in South Sudan to receive protections from the state and guarantees of sovereign recognition and territorial integrity from the international community. This is a vivid contrast to other newly recognized states, such as Kosovo, which is still under international protection. In the example of Kosovo (Prior IntLawGrrls posts on this issue here), threats to the border by either Serbia or Kosovo have been met with a far more immediate and vocal international response, due no doubt at least in part to a desire to stop the potential for the outbreak of more violence. However, in South Sudan, where that potential for violence has already been realized, it is troubling that attention and attempts to defend the rights of the state as just that, a state, have been lacking on the part of the same international community that gave legitimacy to South Sudan to begin with.


Kyle said...

May I ask why you seem to be working on the assumption that Sudan is the aggessor in this particular phase of the conflict?

I realise that it is convenient to blame everything on the North, and perhaps deservedly so. However that approach doesn't advance our understanding or knowledge of the situation.

The reports of this recent spat of violence consistently place the fighting in Heglig, which is unquestionably on Sudan's side of the border. It is the North's territorial integrity which appears to be violated.

Secondly, I don't understand your comments regarding the international community's protection of Serbia's territorial integrity, considering that Kosovo was created through the use of NATO force.

sunsetsinsudan said...

Since South Sudan became independent on July 9, 2011 it has hosted the armed movements of SPLM-N (which is fighting an armed rebellion against the Sudanese state in South Kordofan and Blue Nile) and JEM (which was fighting a rebellion against the Sudanese state in Darfur and is now fighting in South Kordofan). Sudan also supports several, rather unsuccessful, rebel movements in South Sudan. Understanding this fact is vital to understanding the challenges to the international response to border violations by both Sudan and South Sudan. Since its inception as a state, South Sudan has violated international laws and norms by hosting and providing material support to rebel movements attacking the equally sovereign government of Sudan.

Sudan has responded largely through bombing military targets associated with the Sudanese rebels operating inside South Sudan (not South Sudanese military or civilian targets) such as roads, bridges or areas with large rebel military presence. This includes refugee camps. The refugee camps along the border in South Sudan, Yida refugee camp in particular, are highly militarized. SPLM-N and JEM fighters live and travel openly with weapons such as RPGs and tanks inside of refugee camps. Two weeks ago an ammunition storage facility inside of Yida camp caught fire and was so large the explosions lasted several hours. Thus, even the refugee camp bombed by SAF serves a military purpose for the rebels fighting the Sudanese government. (It is a separate law of war question, as to whether such bombings could be proportional given Yida's strategic military value for the rebels, the low number of civilian casualties from such bombing raids, and the international protections afforded refugees. Another question would be the responsibility of the SPLM-N and Government of South Sudan for refusing to move the refugees to an official UNHCR camp further from the border or to de-militarize the camp).

The UN and international community have a difficult challenge in supporting the world's newest state when that same state has violated international law and norms since day one. I would also caution that international pariah or not- it is Sudan whose territorial integrity has been most seriously violated. The South Sudanese army has attacked and taken territory well inside of Sudan. Recognizing that "guarantees of sovereign recognition and territorial integrity" apply to both States there have been several international statements: from P-5 Countries, the AU and UNSC in recent days calling on South Sudan to respect Sudan's territorial integrity.

This isn't a political position rather an application of law to the rather complex facts on the ground that may help explain why there hasn't been greater international condemnation of Sudanese incursions into South Sudan.